In the Charleston Gazette today, there is an article detailing excessive force complaints by West Liberty University students against the Charleston Police Department. First sentence of the article: the mayor is speaking out to the media, defending the officers and essentially denouncing the complaints as lies. The article contains numerous statements from the police, as well as the mayor, and has statements from numerous university officials and students who witnessed the incident.
The students and university officials have every right to voice their outrage about what happened. However, the mayor was wrong to make statements to the media, only a couple of days after the incident occurred, denouncing the complaints as lies. There obviously has been no legitimate internal investigation of the complaints, and certainly no independent or unbiased investigation. In my experience, when a mayor comes out and speaks to the media, they are worried.
CHARLESTON – Four Fayette County deputies are accused of beating up a disabled man and later dropping him off at his home without providing him any medical treatment.
Nicholas D. Hall, Robert V. Neal, James K. Sizemore and Dana C. Wysong are named as co-defendants in a five-count civil rights suit filed by Matthew Cole in U.S. District Court. In his complaint filed Dec. 13, Cole, 37 and an Ansted resident, alleges all four beat him without provocation when they responded to a domestic violence call to his cousin’s house two years ago, only to then have Wysong return him to his mother without either explaining his injuries or seeking treatment for them.
. . .
I know that many people have been following this case, so here is an update. On Monday I was ordered by the U.S. Fourth Circuit Court of Appeals to respond to a Petition for Writ of Prohibition filed by the defendants in the Sawyer v. Asbury 1983 excessive force case. The new jury trial on damages is scheduled for next week. I was given until yesterday to respond. Unless the Fourth Circuit says otherwise we are having a trial on Tuesday. Here is our response:
(Yes I did this in two days, so please excuse any mistakes)
Unfortunately we lost at jury trial. But we just received an order from the Federal Judge overturning the jury verdict and granting judgment in our favor. There will be a new trial to determine damages. Yes!
Update: Link to newspaper article.
2nd Update: Gazette article by Zac Taylor. Some excerpts:
In his order filed Friday afternoon, Goodwin recalled the Los Angeles riots in 1991, sparked after a jury acquitted Los Angeles police officers in the beating of Rodney King despite video footage of the incident.
“The public had seen the tape. The Los Angeles riots ensued,” Goodwin wrote in the order. “Here and now, as there and then, the jury did what they thought was right but simply got it wrong.”
The judge said that law enforcement officers are constitutionally prohibited from inflicting “unnecessary and wanton pain and suffering” on detainees. He said that case law also prohibits officers from using physical force in response to chatter from detainees.
. . .
“The video clearly shows Deputy Asbury punching Mr. Sawyer in the face,” Goodwin wrote, “with the force of his blow knocking Mr. Sawyer’s face to the side.”
. . .
Asbury resumed choking Sawyer. The deputies then took Sawyer to the floor, went out of view for the camera for a short period before returning, and leaving the man on the floor, Goodwin said.
Sawyer stayed on the floor while the officers apparently went on with other tasks, Goodwin said. After a while, Sawyer managed to sit up. He was later taken to the hospital with a fractured nose.. . .
During the trial, Sawyer’s lawyer, John H. Bryan, asked the judge to make a ruling on the case based on the video. Goodwin said that he had “grave concerns” that the testimony of the officers involved contradicted the footage.
“I said in response to the motion that I was reminded of the Marx Brothers’ ‘Duck Soup’ movie, in which the heiress confronts Chico Marx dressed as Groucho and says ‘I saw’, and he replies ‘Who are you going to believe, me or your own eyes?’ ” the judge wrote.
TV News article.
Today we received the Judge’s memorandum opinion and order denying the defendant’s motion for summary judgment, finding that the defendant police officer is not entitled to qualified immunity on our primary claim. This means that we are going to have a jury trial, which is scheduled for later this month.
We are currently litigating the defendants’ motion for summary judgment in Sawyer v. Asbury, et al. Our response contains a fairly thorough walkthrough of excessive force law for most types of excessive force claims. Of course this is tailored to the 4th Circuit as much as possible. But the law is similar throughout all of the circuits.
Two of the exhibits:
The Tim Mazza lawsuit, which was pending in the U.S. District Court in the Southern District of West Virginia, is now settled. In police lawsuit cases, the settlements are not necessarily confidential. This case was settled for $100,000.00. Another case involving two of the same officers was settled a couple months prior for $70,000.00.
Link to a news story on the Mazza settlement.
Link to a news story on the Ratliff settlement.
The funny thing in this case is that from day one, in the newspapers, the mayor and police chief blamed us lawyers and tort reform in general. They publicly announced that they would not be settling this case and that they would handle the matter in court. Of course this had to be addressed once the decision to settle was made. In the News and Sentinel article announcing the settlement, they blamed the decision to settle on their insurer.
If I could get an insurer to settle a frivolous case for 100 grand just to avoid the time and expense of litigation, I wouldn’t be so picky about which cases to accept.
We just filed this case in federal court against the Morgan County Commission (i.e., Morgan County Sheriff’s Department) and Deputy Seth Place for the 2010 shooting of my client, Ulysses Everett. He was shot twice through the front door of his home while unarmed. There is a video.
ETA: News article from The Journal newspaper.
Two more thoughts of the day: 1) Without video proof, police misconduct didn’t occur; 2) Sex offender registration mania is out of control
It blows my mind that this is on video, but it is. A scumball cop in Ohio abused his authority and violated the civil rights of an innocent citizen. He basically threatened to execute the guy, etc. Of course the poor guy is then prosecuted for “failure to notify” that he had a concealed weapon permit and was carrying. I heard through the grapevine that in the criminal prosecution which ensued (of the victim of course – not the cop) the prosecutor offered to dismiss the charges if the victim/defendant signed a release of liability foreclosing any possibility of a lawsuit over civil rights violations. If this is true (and I have no proof that it is), the prosecutor should be prosecuted for attempting to cover up a crime. I just found this statement from the police chief in that jurisdiction:
I want to assure our citizens that the behavior, as demonstrated in this video, is wholly unacceptable and in complete contradiction to the professional standards we demand of our officers. As such, appropriate steps were placed in motion as dictated by our standards, policies and contractual obligations. Those steps included: The officer immediately being relieved of all duty. The incident has been referred to the Internal Affairs Bureau for what will be a complete and thorough investigation. As bad as the video indicates our officer’s actions were, there is a due process procedure to follow. That process is designed in the best interest of both our employees and the citizens at large. That process will be followed in this case as in all others. Anyone shown to be in violation of our rules and regulations will be help appropriately responsible as dictated by all the facts. ~Chief Dean McKimm
The 800 pound gorilla in the room is this: if the video did not exist, nobody would believe the victim. And it blows my mind that the video was recovered. By the way, if you watch the video, take note of the illegal search of the backseat of the car which happens almost immediately after the stop. This sort of garbage happens all the time. After the fact the cops will claim to have received consent to search the vehicle. There was no consent, and there was no probable cause to search.
Secondly, there is a story out today about 14 year old boys being required to register as sex offenders due to a high school prank. It’s time to tell the whining hippy women and the “new-castrati” that enough is enough with this sex offender garbage. Of course it has its place with real sex offenders. But this has gotten out of control. I’m tired of seeing this ruin the lives of good young people. The sex offender laws are too broad. Then once we label good people as “sex offenders”, it ruins their lives. Not only this, but it waters down the real purpose of having registered sex offenders. So what’s the point?
If you were wondering what the law is in West Virginia, it is basically this: if there is any conviction of an individual and the presiding judge makes a finding that the offense was “sexually motivated” in any way, that person then becomes a registered sex offender. It doesn’t have to be an actual sex offense charge.
The State Journal ran a story today entitled “Guilty Pleas Expected in Development Scam” announcing that a former United Bank Vice President and loan officer who we sued as a part of our Walnut Springs Mountain Reserve civil fraud case, “R. Leon Cooper” has agreed to plead guilty to federal crimes as part of a plea deal.
The conduct supporting the plea has to do with fraud which occurred in the development of the “Lamplighter” subdivision in Lewisburg, WV. The story also noted that:
As part of the guilty pleas, both Carter and Cooper agreed to cooperate with the U.S. Attorney’s office on further investigations. Both Carter and Cooper also will forfeit nearly $2 million in valued property.
Carter is scheduled to enter his guilty plea Jan. 6 in Beckley. Cooper’s plea has been scheduled for Jan. 13 in Beckley.
Cooper was the former Fayette Planning Commission president involved in the failed River Ridge development in Fayetteville.
That development crumbled when sewer plans for the development were prematurely approved so loans Cooper facilitated through United Bank could be approved for property purchasers, according to lawsuits filed concerning that development.
Cooper also has been named in a civil lawsuit filed in the failed Walnut Springs development in Monroe County.
The Monroe County lawsuit is pending.
There also was a story in the Charleston Gazette yesterday that United Bank paid $15,000,000.00 in fraud settlements in 2009 alone. And we wonder why the economy collapsed…. The Gazette also ran a story on Friday on the Cooper fraud. The banks have been running absolutely wild. We are still sorting out how many innocent U.S. citizens were harmed due to bank fraud in the mid to late 2000′s. It is a big deal for these two West Virginia publications to start reporting on United Bank’s dirty laundry. For those of you who don’t know, United Bank basically runs the state of West Virginia. It is the “state’s largest bank” and many, many people and institutions in West Virginia are afraid of it. But once the cat’s out of the bag, it’s out. I suspect we will read more soon.
Ok, here’s more: A Virginia businessman, Osama M. El-Atari, 31, pled guilty to bank fraud totaling $53,000,000 in fraudulent loans. Guess who else was involved? That’s right, United Bank. A United Bank Vice President and loan officer (same general position as Cooper), Sissaye Gezachew, 32, was arrested and pled guilty to bank fraud for his involvement with El-Atari. See Washington Post article and FBI press release. Banks do not exactly advertise these incidents, or even explain them, to their customers or shareholders. In fact, they don’t even let their mortgagees who have been victims of fraud know about the fraud. Rather, they pretend it never happened and demand their money. Then they foreclose and threaten to garnish wages. Of course you would still be safer with United Bank than dealing with United Bank of Africa.
In the Charleston Gazette this morning is an article on a federal lawsuit I filed yesterday on behalf of Brian Sawyer, replete with a video of his beating at the hands of a Wood County, WV deputy. This is an excessive force case which is currently the subject of an FBI investigation, as the article confirms.
This incident would have coasted under the radar if it were not for Sgt. Dave Westfall of the Wood County Sheriff’s Department, who blew the whistle on what happened, and saved the surveillance video of the beating, providing it to the FBI after his superior allegedly told him to not throw his fellow deputy “under the bus.” Westfall is a veteran of the U.S. Special Forces, with a distinguished career as a law enforcement officer. He is also a certified self defense instructor and use of force instructor. It goes to show that real men do not need to use their badge to beat people up. Real men use restraint and act with a clear head. Real men do what is right and would never cover up a civil rights violation just because he can.
Unfortunately, now Sgt. Westfall is defending himself against the Wood County Sheriff’s Department. He alleges that he was caught by his superiors showing this video to two FBI agents secretly at a Cracker Barrel restaurant, and now they are seeking to discipline him for unrelated allegations. And we wonder why other officers do not come forward to report misconduct . . . . Their choice is to have a long, quiet career with no bumps in the road by staying quiet, or to do what is right and face persecution.
Now we all need to stand behind Sgt. Westfall and keep him from getting thrown under the bus for having integrity.
This is a good lesson on what the proper role of the federal government is. I was watching the Maynard / Rahall debate last night, and there was a lot of discussion on the proper role of the federal government. There are a couple of things that we do need the federal government for: raising, maintaining, and operating a military; and stepping in to local situations where there is questionable accountability and integrity within state or local government. Thank God we live in a country where we can go to the FBI if we believe that there has been a coverup or conspiracy among law enforcement at the state or local level. Otherwise, what could we do?
Other Media Links for this case:
WTAP video (Note: during the video the anchor says something about Sawyer pleading guilty to assault on an officer, and at the exact time she says that you see Sawyer in the background being choked and held up off his feet. Obviously a vicious assault against that officer. Of course when he took the plea offer, he would have had no idea about the video, and without a video it’s like talking to a brick wall when you tell people you were beaten up. That’s the usual way things work. You get beaten up, and they charge you with assault. Then they give you a good deal on the jail sentence if you just plead to assaulting an officer.)
Statement released by Sheriff Jeff Sandy:
“On October 26th, 2010, a federal law suit was filed concerning alleged “excessive force” violations being committed by a former employee of the Wood County Sheriff’s Office. I assure the public that the Wood County Sheriff’s Office will continue to cooperate fully. As Sheriff of Wood County, I am responsible for all events that have occurred at the Wood County Sheriff’s Office since taking office. Under my watch the Sheriff’s office has not and will not tolerate illegal and unethical behavior by any employee that has taken the oath of office. The Wood County Sheriff’s Office has some great public servants, and this alleged incident should not reflect upon the entire organization. In ending, as Sheriff, I welcome any and all investigations by federal and state investigators, because after their investigation is completed it will show an unbiased detail of the events.”
Note: probably not coincidentally, I also have another case currently pending in federal court for a police beating which occurred in Parkersburg – Tim Mazza. At least this time officials have not been blaming me or tort reform….
The Second Amended Complaint has now been filed in the United Bank / Walnut Springs case, on behalf of 33 plaintiffs. The Complaint is 70 pages long and details as sophisticated scheme of bank and appraisal fraud, which now has been exposed in very specific detail.
As usual, there were some comments by the WVSP included as their response to the reporter’s inquiries. However, I was surprised to see that for once there were no potshots taken at me or any other lawyer. They did not call for tort reform this time. I wonder why this is? Could it be that this time there is an independent agency conducting an investigation (the FBI)? After all, they would look pretty bad if they discounted the lawsuit’s allegations and the FBI ends up finding merit in them.
To be fair, the main incident I am referring to is the comments from the Mayor and Police Chief in Parkersburg from the Mazza case, which of course does not involve the state police. And usually the WVSP are more professional than that. But, it was only a week ago that they publicly decried attorney Mike Clifford for releasing information to the media in the Snavely case, all-the-while ignoring the fact that the WVSP had apparently been caught in a cover-up.
I still don’t see how it helps the WVSP to engage in secrecy and suppression of trooper misconduct. You would think that public confidence would be instilled through the purging of troopers who can’t follow the rules. Maybe this is something that we can change if we yell loudly enough. After all, we are citizens and taxpayers, and the state police is our state agency. It represents us, and at least theoretically, is funded by us. Let’s resolve to engage not in tort reform, but reform of the WVSP. We need public disclosure and accountability.
Again, I will say, that I support the military; I support law and order; I support law enforcement. I understand that 95% of law enforcement out there are good people who place public trust and integrity foremost in their actions as officers, and who would willingly sacrifice themselves to save another. I am okay with “cowboyism” where necessary, i.e., in Compton, CA, or some like place. I understand that it is necessary in places which are akin to war zones. But for the most part, in West Virginia, which is the primary area I am concerned about, and the only area in which I have any power to seek justice, I don’t want it to happen – especially against someone who did not commit a crime. And if it does happen, the WVSP knows, and counties and municipalities know, that myself, and other lawyers, who also take an oath to uphold the U.S. and West Virginia Constitutions, will be watching.
- John H. Bryan.
The latest of Charleston Gazette reporter Gary Harki’s article critical of the WVSP is, to me anyways, an absolute bombshell – though not surprising in the least. Usually in the media you find brown-nosed reporting with regards to law enforcement, usually which talks about all the criminals who were arrested and/or charged. Harki has had the gusto to take on the West Virginia State Police in a big way.
The article deals with former-Trooper-now-Hinton-Police-Chief-Snavely, who I have discussed before. I wasn’t surprised when I found out that prosecutors were not charging Snavely with a crime. But I was surprised to see Harki’s article titled, “prosecutor not told ex-trooper falsified log“. Apparently the WVSP “investigation” into Snavely uncovered the fact that Snavely falsified his duty log for the evening when he was accused of his wrongdoing. However, they apparently chose to leave that tidbit out of the investigation report which went to the prosecutor. So Harki finds out about this from attorney Mike Clifford. Harki then goes to the prosecutor who made the call. And he is apparently pissed, and rightfully so – since it was published as being his decision not to prosecute Snavely. And of course, as usual, the WVSP is angry at the attorney – at Clifford! It was his fault – he shouldn’t have told Harki.
We have a culture of secrecy in the WVSP. Even though for the most part they are good and law abiding officers, the top brass have have made some decisions which undermine the public’s trust and confidence in their integrity. If you have a public official who has done something wrong, the public needs to know about it, and the public wants to know about it. If covered up, the public gets pissed. And the coverup is always worse than the crime. If they would just throw the bad officers under the bus where they belong, from the very beginning, the WVSP would come out smelling like a rose. It would reinforce our confidence in law enforcement.
Instead we have the awful situation where an innocent citizen can have his civil rights violated by some cowboy cop, and there’s nothing the person can do about it. What can they do? Call the police? Yeah right. Call the West Virginia State Police? Yeah right. Call the Governor? You just get a form letter in return. Call your congressman? You just get a form letter. Call the FBI? Do you have any idea how many complaints they probably get? Without something more to lend legitimacy to your complaint, there is about a 99% chance they will do nothing about it. The only thing you can do is get a civil lawyer on your side. Someone who has the guts to sue the WVSP, and to put up with the WVSP verbally accosting them in every newspaper article rather than commenting on their troopers’ misconduct.
Here is a copy of a lawsuit which was filed friday against the West Virginia State Police, this time on behalf of a law enforcement officer. Of course everything is my fault as the attorney. Damn scumbug lawyers…. There was an interesting article in the Charleston Gazette this past Sunday on all the problems they are having at the WVSP. Out of one mouth they are saying that they pretty much only settle cases for “financial” reasons. Then out of the other side of their mouth they are bragging that they haven’t had to pay out anything to the plaintiffs who sued them in Logan County, even though they have spent almost one hundred grand in legal fees fighting them. If you are settling for financial reasons, then why didn’t you settle the Logan County cases before spending six figures defending them? We are reaching a crisis point in West Virginia with respect to our law enforcement. We have rampant allegations of misconduct, and the leadership actively suppresses it and stays “mum” towards the public. In the rare situation where they agree there has been misconduct, they allow the officer to resign and go elsewhere to some other unsuspecting community. We taxpayers and citizens are told nothing. They should proudly weed out the bad apples among their ranks. The fact that they don’t makes us mistrust them. Lawyers don’t want bad lawyers around. Doctors don’t want bad doctors around. Airline pilots don’t want bad airline pilots around. You only find this phenomonen of absolute non-accountability and “professional courtesy” in the realm of government employees – most notably in law enforcement. Then they blame the lawyers. If there were no lawyers with the courage to take on law enforcement, then people would really be helpless. I bet they would like to get rid of us. Tort reform? Their officers already have dozens of different kinds of immunity, which you can only get past with legitimate allegations and convincing proof. What else do they want? Maybe they should admit they have a problem, then they could take the next step of solving it.
As I mentioned in the previous post, we filed a lawsuit against the city of Parkersburg, West Virginia, for the alleged sexual orientation hate crime beating of our client, Timothy Mazza. There is a good article in the Charleston Gazette – actually the Sunday Gazette Mail, as it is called on Sundays – top of the fold on the front page. It features a color picture of Mr. Mazza displaying the large black and blue side of his abdomen where his rib was fractured. The reason I say it is a good article is because the reporter, Gary Harki, conducted his own investigation into the case. He interviewed witnesses and examined evidence. Other reporters would have just regurgitated the lawsuit.
An interesting thing about the article is that the mayor and the police chief of the town are quoted several times in reference to the case:
Parkersburg Mayor Bob Newell and Police Chief Joe Martin dispute Mazza’s claims. Newell said that if what Mazza claims is true, he should have talked to police – not to a lawyer and the news media. . . .
The mayor blames the lawsuit on what he says is West Virginia’s need for tort reform.
“It is very aggravating that it is being handled this way,” Newell said. “I’ve dealt with attorneys a lot, and they are trying to get cases settled through public pressure.” . . .
Martin and Newell said they will ask their insurance carriers to allow the case to go to court, rather than settle.
Martin, who became chief after the incident, said they never received a formal complaint or even a phone call about the incident before being served with the lawsuit.
“We will let it work itself out through the legal process,” he said. “He can say whatever he wants to say. We’re not as free to speak as they would be.”
So let me get this straight. If the police trespass on your property, beat you up, fracture your rib, refuse to take you to the hospital, keep you in jail overnight, and call you gay slurs while doing so, you should go to them for help? Let me tell you something. I have people who call my office or email me everyday with similar experiences, and there is absolutely no one willing to help them. Making a formal complaint is laughable. The only complaint they take seriously is one filed in a courthouse. Why would you go to them for help while they are trying to prosecute you. They never voluntarily dropped the charges against Mazza. It took a criminal defense attorney going to the court to cross examine the officers in order to point out the civil rights violations which occurred. It was the court that dismissed the charges. The prosecutors/cops were all-the-while trying to get Mazza to agree to a plea involving 30 days in jail. It is outrageous to claim that instead of going to lawyers he should have gone to the police.
In reality, Mazza comes from a long line of law enforcement officers. His father was a police chief. He has great respect for law enforcement. After this happened, phone calls were made, and they were ignored. The police chief would not return a phone call from, or communicate with, Tim’s police chief father about what happened to Tim – nor would they even provide Tim or his father with the officers’ names. It took lawyers to take action. And American citizens have every right to go to the media, as we are guaranteed the ability to do under the First Amendment of the US Constitution (regardless of whether the Parkersburg mayor and police chief agree with that document).
It’s been a while since I last posted. There is a good reason for that. The reason is that unfortunately, my primary profession is the practice of law rather than writing. I have been busier than ever before in the last month or so. For one I had a healthy baby daughter two weeks ago, and she surprisingly loves to sleep through the night, so she is so far no trouble at all (I know, knock on wood). Additionally, I have been working on a number of high profile cases, some of which you may be reading about in the media in upcoming days.
One of my cases is already in the news, and unfortunately for my ego I suppose, the only way you would know that I was involved in it would be to read the Complaint, or to read this, since the media has thusfar deprived me of any credit whatsoever. Anyways, myself and attorney Michael Clifford of Charleston (see Leavitt case), filed a lawsuit against the Parkersburg Police Department, as well as the individual officers involved, last week in federal court. This is a 1983 action for wrongful arrest, excessive force, etc.
There will be a better and more detailed article coming out on this case, after which I will post a link to it here. The facts are egregious, and involve the new classification of homophobic crimes as hate crimes. For now, here is the original story from the Parkersburg News and Sentinel, which interestingly multiplied automatically when it was picked up by the AP.
If anyone else knows someone, or has themselves been arrested,harassed or discriminated against by the Parkersburg Police Department due to their sexual orientation, please let me know, preferably as soon as possible.
As I said, this is not the only high profile case I have been working on. There is going to be another police liability case filed here in the next week or so, this time in Southern West Virginia, and there is an additional case involving white collar fraud I have been spending most of my available time on which is extremely interesting and which I will detail when the time is right. So don’t hold it against me if I cannot find time to post as often as I used to.
- John H. Bryan, West Virginia Attorney.
In the news today – college kid in federal court on trial for hacking into Sarah Palin’s email account – facing 50 years in the federal penitentiary. Meanwhile, in West Virginia….
(can you see where this is going?)
Police officer, while on duty and using official resources, hacks into his ex-wife’s personal email account in the same exact way, downloads the emails and attempts to use them as evidence in a child custody proceeding, and then admits to doing so. Federal indictment? Facing 50 years in federal prison? Fired? Nope, none of the above.
Could a lawyer do that? No, he would get in big trouble. But it’s pretty darn hard to get in trouble if you are a county or city police officer in West Virginia, especially the Ohio County Sheriff’s Department (Wheeling, West Virginia).
Here myself and another lawyer, Thomas E. White, from Moundsville, West Virginia, have teamed up to help give justice to a former law enforcement spouse who alleges that she suffered, and continues to suffer, due to her ex-husband’s position as a police officer, and to attempt to do the county’s job (for them) of providing discipline and accountability to the Sheriff’s Department there.
It is often said that the definition of a profession is a group of persons who engage in the same occupation and police themselves. Physicians authorize and discipline their own. Lawyers authorize and discipline their own. The same goes for veterinarians, pharmacists, and so on. Cops do not police themselves. They do not proactively sort out the bad apples.
Case in point: former Montgomery, WV PD officer Matthew Leavitt. He successfully got his municipality sued multiple times and cost their insurance company six figure settlements. This could have been avoided years earlier if anyone in the law enforcement field would have given a damn. The Charleston Gazette published a story on his career. According to the Gazette, his resume includes the following:
November 2000-June 2001:
Leavitt is employed at South Central Regional Jail.
June 25, 2001:
Leavitt is arrested for driving under the influence.
December 2001-December 2004:
Leavitt is in the U.S. Army. While there, he is disciplined for drinking on duty.
Leavitt is employed as a Cedar Grove Police officer.
Leavitt’s certificate of completion of West Virginia State Police Basic Training is signed.
Leavitt is charged with battery by Charleston police for a bar fight.
Leavitt leaves the Cedar Grove department and is hired by the Madison Police Department.
July 13, 2006:
Leavitt goes to Elsie Keffer’s house in Madison at 7:45 a.m. and harasses her, her boyfriend and her daughter, according to Madison Police records subpoenaed in the Reynolds’ civil suit.
Leavitt resigns the Madison Police Department.
Leavitt is hired by the Smithers Police Department.
Nov. 6, 2006:
Leavitt is hired by the Mount Hope Police Department.
Nov. 24, 2006:
Leavitt leaves the Mount Hope department.
Nov. 29, 2006:
Leavitt is hired by the Gauley Bridge Police Department.
In his employee file, provided to the Gazette by Reynolds’ attorney Mike Clifford, there is a paper where Gauley Bridge Chief L.S. Whipkey and Mayor Damon Runyon kept notes from interviews with Leavitt’s references.
Madison Chief C. Burgess said, “he would love to have him back” and that he “gets along well with other people.” Smithers and Cedar Grove police chiefs also recommended Leavitt to Whipkey.
Hutchinson is hired by Smithers.
Leavitt is terminated by Gauley Bridge for sleeping on duty.
Leavitt is hired by Montgomery.
Hutchinson and Leavitt allegedly assault Roderick and Lakisha White after responding to an incident at their home, according to a lawsuit filed in Kanawha County Circuit Court.
“[Leavitt] threatened to ‘blow my fat black ass away,’” Lakisha White told the Gazette. “He said, ‘Bitch, I own you. I own the streets of Montgomery.’”
Hutchinson receives certificate of completion of West Virginia State Police Basic Training.
Leavitt leaves the Smithers Police Department. (During Leavitt’s tenure at Smithers, he worked for other departments concurrently, a common practice among small-town officers.)
Leavitt, recently hired by Cedar Grove, along with another Cedar Grove officer and a Kanawha County sheriff’s deputy, allegedly sexually assaults Patricia O’Scha on a hill across from Riverside High School, according to a suit filed by O’Scha in Kanawha County Circuit Court.
The three allegedly told her that if she would have sex with them, she wouldn’t have to go to jail. O’Scha said that while she was alone with Leavitt at the Montgomery police station, he implied she should have sex with him or give him oral sex, according to the complaint. Just when he stopped working for Cedar Grove is unclear.
Hutchinson resigns from Smithers and is hired in Montgomery.
Leavitt allegedly handcuffs Gregory Lee Payne and drives him to a wide spot in the road just before Interstate 64 near Cabin Creek. There he chokes and hits Payne, then leaves him by the side of the road, according to a lawsuit filed in Kanawha County Circuit Court.
Aug. 23, 2008:
Leavitt allegedly assaults 17-year-old Sherkiri Terrell. She alleges that after he pushed her head against a wall, he slammed her cell phone to the ground. As the two struggled, she says she put the phone down her pants. She alleges that when it began to ring, he put his hands down her pants to get the phone, according to Terrell.
Aug. 27, 2008:
Joey Carr knocks over a soda machine in Montgomery. Leavitt stops him, takes him to the police station and assaults him. When Leavitt pepper sprays him at close range, Carr says he tries to run away.
“He grabs me and throws me down, kicks me in the stomach and Maces me again,” Carr told the Gazette previously. “When he handcuffs me, he throws me against the car and told me to ‘Quit screaming like a little bitch.’”
Sept. 26, 2008:
Leavitt and Hutchinson assault Twan and Lauren Reynolds. Leavitt hits Twan over the head with a blackjack, kicks him in the back and sprays his eyes with pepper spray at close range.
He also uses a racial epithet and licks Lauren Reynolds on the neck during an interrogation, saying, “Little whore, you like it like that.” Their 4-year-old daughter witnesses much of the assault.
Sept. 27, 2008:
Montgomery officials suspend Leavitt and fire Hutchinson for the incident.
Sept. 29, 2008:
Montgomery police start an internal investigation into the Reynolds beating.
Oct. 1, 2008:
Hutchinson is employed as a Glasgow police officer.
Oct. 21, 2008:
Hutchinson’s last day as a Glasgow police officer.
Leavitt is terminated by Montgomery Police.
Hutchinson is employed by Chesapeake Police, where he is still an officer.
June 10, 2009:
Leavitt is indicted on federal civil rights violations for beating Twan Reynolds and falsely charging his wife, Lauren Reynolds, with a DUI.
July 6, 2009:
Leavitt pleads guilty to two misdemeanor civil rights violations in federal court. During the sentencing Oct. 22, Chief U.S. District Judge Joseph R. Goodwin said Leavitt remains defiant.
“He has stated that he only pleaded guilty because he feared that due to, quote, ‘idiots,’ unquote, on the jury, it was the, quote, ‘smarter thing to plead guilty,’ unquote,” Goodwin said. “He stated he wants the Court to know, quote, ‘I stand by my actions that day.’”
This generally is not the case with the State Police. But when the State Police fires somebody, or they resign due to misconduct, they usually go to some small municipality just as Leavitt did. Another case-in-point, Derrick Snavely. According to the Charleston Gazette, this is what was alleged:
In an interview with The Charleston Gazette in December 2008, the woman said Snavely told her she was driving in the middle of the road, then performed a field sobriety test on her. She asked him if she was going to get a DUI, and he told her he didn’t think she was that drunk.
Eventually they drove in separate cars to another spot, where Snavely, who is in his early 20s, began kissing and fondling her, she said. Then they drove in separate cars to her house, she said. “I went in survival mode,” she said at the time. “I couldn’t call anybody because he was the police.”
Snavely admitted to the sexual encounter, but claimed that there was no resistance. Though he was fired, he was not prosecuted. Prosecutors concluded that it was not a criminal offense for a trooper to have sex while on duty. They really stuck up for him.
Kanawha County prosecutors declined to bring charges against Snavely after reviewing the evidence, said Dan Holstein, assistant prosecutor for Kanawha County. The case was independently reviewed by two assistant prosecutors and they agreed that there was no prosecutable offense, he said. . . .
“To have a sex offense under those circumstances, you have to prove beyond a reasonable doubt that there was forcible compulsion. … And in this case there was no resistance at all, not even in word,” Holstein said. . . .
Prosecutors reviewed all the evidence, including a videotape inside the woman’s home that shows the officer there that night.
“If the Legislature wants to make it a crime to have sex with someone on duty, they can do that,” Holstein said. “But so far they haven’t. Just because he was a police officer and on duty doesn’t mean it was a crime.”
This should really piss you off. He pulled some girl over. Undisputed. She admits she was drunk. He ends up having sex with her at an apartment. Undisputed. (Undisputed only because it was caught on videotape). She is not charged with DUI. Undisputed. Prosecutors go out of their way to conclude that no crime was committed. Needless to say, her lawyer, Mike Clifford, disagrees:
“Any time a state trooper is in a squad car in uniform with a gun and a badge, the standing and negotiation powers for sex or anything else is severely restricted,” Clifford said.
Clifford, who has filed multiple lawsuits accusing police officers of wrongdoing in the past year, said he tells his clients that it’s best to follow police orders when they are stopped.
“Go along with whatever they do. We have the option in open court to figure it out,” he said.
So where does Snavely go after he resigns? Hinton, WV PD. A small municipality with a history of law enforcement issues. He is now Chief. I actually have met him, and he seemed like a nice guy when I met him. But the point is, there is a complete lack of sanity in the hiring of police officers by municipalities. These people are then given a gun and authority to point it at you. This helps put West Virginia last on the list of where people want to come visit – or start a business. Less officers is better than enough officers unqualified.
Officers who resign or are fired from counties also end up in these shady municipalities, such as Robert Alkire, Jr., about whom I have previously posted, who allegedly shot his gun off during an on-duty altercation with his girlfriend, and is now working at the Ronceverte, WV police department. The Charleston Gazette has also published articles on him.
This is what you get when you unionize government. This is what you get with big government: a complete lack of accountability, a complete lack of sanity. Just wait until it affects you, and then you will care. It happens.
- John H. Bryan, West Virginia Attorney.
I get calls every day from people in West Virginia, or from elsewhere who were arrested, etc., in West Virginia, who want to sue the police. To be honest with you, I only seriously consider very, very few of these types of cases. Sometimes, from what I hear in the first few minutes, or in a description of what allegedly happened, I don’t even want to get involved with it.
Since I know that people researching the law with regards to filing lawsuits against the police and police misconduct in West Virginia end up on the site, let me go ahead and tell you what I personally look for in a police liability case.
Number one, credibility. If it’s going to be your word against the officer’s. There must be some indication of credibility on your part. That means preferably no criminal history. College education is a plus. A good career is a plus. A good family is a plus. Being married is a plus. Being otherwise successful in life seriously bolsters your credibility.
Number two, corroborating evidence. It is almost necessary to provide some corroborating evidence that the police engaged in misconduct. It could be a witness (again, see comments on credibility), or it could be a videotape, an audio recording. It could be found in official documentation, such as a police report or internal investigation, or even in a cruiser dashboard camera, or a police report. It could be corroborated by law enforcement itself, such as through disciplinary action taken against the officer, or through a criminal prosecution of the officer.
Number three, damages. If you have no damages, in most instances, there’s nothing to compensate you for. This goes hand in hand with credibility. Generally, if you are a credible, upstanding citizen, it will cause you damage to be wrongly arrested. You might get fired. You might lose business. These are damages. Maybe you were beaten and ended up in the hospital. Medical bills, pain and suffering, etc., are damages.
Number four, your story of what happened to you has to piss me off. If after hearing what happened to you really pisses me off, then I get excited about it. Those are the types of cases I like to take. One’s that I feel comfortable with taking to a jury and shoving down the state’s throat. Where I feel truth and justice is on my side.
Number five, and lastly, I have to have a good feeling about the client. I don’t want to take a risk for someone – and these cases are risky – if I don’t like them. Because if I don’t like them, chances are a jury may not like them.
Unfortunately, it’s not possible for me, or for other attorneys, to take every justified case. Other considerations are always at play. It is one of the faults of our justice system.
But it doesn’t hurt to ask. If you call me with your story, I will at least be able to tell you pretty quickly whether I would be interested in taking the case or not.
- John H. Bryan, West Virginia Attorney.
In a few weeks, I will be partially presenting a police liability seminar CLE in Charleston, WV. This will be the second year in a row I have done this. Last year was successful. There were a lot of highly-respected attorneys there, many of whom were defense lawyers representing the state, counties, and cities, and many were plaintiffs attorneys. A lot of good information was exchanged. For better or worse.
Here is a link to the brochure, with all of the relevant info.
Perhaps, the most advantageous lesson to be learned is immunity law and procedure as it applies to other types of governmental liability cases (for those who have not yet taken on one of these cases). Because it is mostly applicable in any type of case where you are suing the state, county, or city. And other types of cases are generally more profitable to a plaintiff than one in which you have a police officer or department as a defendant.
A case, about which I have twice previously posted about, has now apparently settled, with the WV State Police forking out at least $200,000. This was a good case from a plaintiffs perspective. The plaintiff himself is a prominent lawyer. He was beaten to a pulp, as the insulting photograph of him with black eyes in an orange jumpsuit will attest to. There really isn’t any excuse for this sort of a beating. The cops were not facing a giant man on a PCP induced rage, he is actually a rather gentle looking guy. But most importantly, the cops were caught trying to cover their tracks. And the cover up is almost always worse than the original wrongdoing.
But what is surprising here, is that none of these officers were charged criminally – at least not yet anyways. And the ironic thing is that, if criminal wrongdoing could have been proven, under the State’s insurance policy, coverage could be excluded, possibly releasing the State from liability. Of course there were some allegations against the State Police in general, as well as the Colonel, for some conduct, such as knowingly allowing surveillance cameras to remain inoperable, and probably for insufficient training and complicity in the attempted cover-up which took place. That may have been the reasoning. Or, it may have just been a protect-your-own type of thing.
Regardless, you can bet your rear-end that if a non-law enforcement person was involved in a fight and beat someone like that, that person would be charged with a crime immediately. Its just another example of the gross double standard. Of course, quoting the Gazette article, the settlement agreement stated that:
The settlement is not an admission of liability, wrongdoing or responsibility for damages, according to the defendants’ written offer. “[L]iability damages or any other wrongdoing are expressly denied [by] these defendants.”
Yeah right. Trust me, the State Police does not cough up $200,000 because they believe they did nothing wrong.
- John H. Bryan, West Virginia Attorney.
It’s not our fault…. Civil Liability of West Virginia Police Officers/Departments in Pursuit Situations
In this morning’s Beckley Register-Herald, there was an article about a West Virginia State Police pursuit involving an ATV. Apparently there was undisputedly a pursuit of an officer in a cruiser, chasing a man on an ATV. Also undisputed, at some point the ATV wrecked and the man was killed. Where the issue lies is, did the wreck occur during the pursuit, or had the officer abandoned the pursuit, after which the man wrecked on down the road? And could the West Virginia State Police be liable for a man fleeing on an ATV only to accidentally kill himself in the process?
The important fact is that the driver of the ATV was killed. He had apparently stolen the vehicle, and thus had fled. The end result is that this case is much, much different from a scenario in which a passenger on the ATV was killed, or some other potentially innocent third party. I’m not going to comment on whether I think there is a case there or not for the deceased’ driver’s estate, but here is some helpful information for cases where the facts are slightly different:
This is a portion of the materials I prepared for a continuing legal education seminar that I presented in Charleston, West Virginia earlier this year which specifically deals with situations where innocent third parties are injured in car accidents resulting from police pursuit situations in West Virginia. This deals with the liability aspects of the state or political subdivision rather than the liability of the fleeing suspect:
Most civil liability cases arising out of a pursuit situation involve collisions between the suspect and a third party. It is well-settled in West Virginia that “[w]here the police are engaged in a vehicular pursuit of a known or suspected law violator, and the pursued vehicle collides with the vehicle of a third party, under W. Va. Code, 17C-2-5 (1971) (rules, privileges and immunities of authorized emergency vehicles), the pursuing officer is not liable for injuries to the third party arising out of the collision unless the officer’s conduct in the pursuit amounted to reckless conduct or gross negligence and was a substantial factor in bringing about the collision.” Syl. Pt. 5 Peak v. Ratliff, 185 W. Va. 548 (1991); See also Sergent v. City of Charleston, 209 W. Va. 437 (2001).
As with other types of police liability cases, employees of political subdivisions are individually liable for their grossly negligent or bad faith conduct. However, there’s no need to name them personally, because pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act, their employer political subdivisions are already liable for damages due to the “negligent operation of any vehicle by their employees when engaged and within the scope of their authority,” W. Va. Code § 29-12A-4(c)(1) and (2), which encapsulates conduct in violation of the the Peak Criteria balancing test described below – which the Court describes as “negligent, wanton, or reckless.” Note that if a political subdivision employee officer is named personally in the complaint, there may be a circumstantial argument that the plaintiff believes the officer was acting outside the scope of employment – leading the insurer to potentially issue a reservation of rights. With respect to state employees, i.e., troopers, they may be named personally without the same limitations, and their conduct will be governed by the Peak Criteria discussed below.
Therefore, with respect to state employees, such as State Police officers, the applicable standard of care is W. Va. § 17C-2-5 and it’s interpretation in the Peak Critera. The standard of care with respect to deputy sheriffs and municipal officers is both the West Virginia Governmental Tort Claims and Insurance Reform Act and W. Va. Code § 17C-2-5. For these purposes, the phrase “reckless disregard for the safety of others, as used in W. Va. Code § 17C-2-5, is synonymous with gross negligence.” Peak, 185 W. Va. at 552.
West Virginia Code § 17C-2-5 governs the privileges and immunities of police officers who are driving authorized emergency vehicles in pursuit of actual or suspected violators of the law, which provides:
(a) The driver of an authorized emergency vehicle . . . when in the pursuit of an actual or suspected violator of the law . . . may exercise the privileges set forth in this section, but subject to the conditions herein stated.
(b) The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
(3) Exceed the speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement of [or] turning in specified directions.
(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when the driver of any said vehicle while in motion sounds audible signal by bell, siren, or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted flashing lamp as authorized by section twenty-six [§ 17C-15-26], article fifteen of this chapter which is visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a warning light visible from in front of the vehicle.
(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall these provisions protect the driver from the consequences of his reckless disregard for the safety of others.
In interpreting W. Va. Code § 17C-2-5, the West Virginia Supreme Court adopted the following factors to consider in analyzing whether the pursing officer’s conduct was negligent, wanton, or reckless (“The Peak Criteria”): seriousness of the law violation, whether the suspect escaped during a previous pursuit, whether weapons, drugs, stolen property, or kidnap victims could be present, whether the pursued vehicle is stolen, whether the officer is familiar with the road and its attributes, the weather conditions and visibility, the officer’s degree of caution in relation to the speed of the pursuit, whether pedestrians are present, the amount of traffic, the length of the pursuit, whether the officer “forced the pursuit” by attempting to overtake the suspect or force the suspect off the road, whether the officer fired a weapon and caused the suspect to panic. Specifically, the Peak Court reasoned:
Trooper Ratliff and Corporal Fulknier were confronted with a serious law violator who had escaped capture in a vehicular pursuit the previous evening. The officers knew of Mr. Akers’ past record and the fact that the vehicle he abandoned on September 14, 1987, contained a weapon and drugs. Both vehicles driven by Mr. Akers on these two days were stolen. The officers were familiar with the road on which the pursuit was conducted. There was good visibility during the chase and no inclement weather which would make the road hazardous. Even though the speed was estimated at between 60 and 100 miles per hour, the officers were careful to slow down when passing cars. There were no pedestrians, and the traffic was moderate. The pursuit lasted only a brief period of time. It does not appear that the officers forced the pursuit by attempting to overtake Mr. Akers or by forcing him off the roadway. Neither officer attempted to fire his weapon, an act which might cause a fleeing suspect to panic. When Mr. Akers crossed the center line and drove into the filling station where the collision occurred, the officers were not in sight.
Peak, 185 W.Va. at 558, 408 S.E.2d at 310.
There also may be a proximate cause issue to deal with where you have a collision caused by the criminal behavior of the pursued suspect. This issue was discussed by the West Virginia Supreme Court in Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311, where the Court noted that, given that proximate cause must be proven in a personal injury negligence action, “[t]he proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.” Id. (citing Syl. Pt. 5 Hartley v. Crede, 140 W. Va. 133 (1954), overruled on other grounds). But, “a tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.” Syl. Pt. 13, Anderson v. Moulder, 183 W. Va. 77 (1990). But, “generally, a willful, malicious, or criminal act breaks the chain of causation.” Yourtee v. Hubbard, 196 W. Va. 683, 690 (1996).
In the Sergent case, the Court held that the intervening criminal acts of “pursuing undercover officers, firing at them, fleeing from the police at high speed, and swerving off the road and onto the berm” were intervening acts which were not foreseeable by the officers involved, thereby “breaking the chain of causation which originally began with their arguably negligent conduct and relieving them, and their employers, of any liability.” Sergent, at S.E. Page 320-21.
Note, in the Sergent case, the plaintiff had proffered an affidavit written by a Maryland State Police officer giving an opinion that, based upon his professional experience, that the actions of the defendant officers
“departed from the standard of professional police conduct, so as to constitute gross negligence, and wanton and reckless conduct on their part, which proximately contributed to the incident causing the death of David Sergent, to include, but not necessarily limited to . . . their high speed pursuit . . . without breaking off the same prior to reaching the congested area; and by otherwise failing to utilize accepted national standards for bringing a fleeing suspect’s vehicle to stop . . . [f]ailing to abide by the Charleston Police Department’s own policies and procedures pertinent to: a. Planning and executing their apprehension of the suspect Jerome Thomas; b. The protection of life during vehicular pursuit; c. Breaking off vehicular pursuit for the public safety; and d. Rendering aid to an injured pedestrian . . . 6. Their failure to abide by and adhere to standards of professional police conduct, such as those contained in the International Association of Chiefs of Police, Inc., Model Policy on Vehicular Pursuits.”
The Court held that no rational jury could find that the conduct of [the officers] . . . was wanton or reckless. Regarding Sergeant Miller’s affidavit, the Court noted that:
The bulk of Sergeant Miller’s affidavit concerning the officers’ conduct during the vehicular pursuit amounts to nothing more than mere allegations. The affidavit opines that the officers failed to follow applicable local, national and international police standards and failed to protect life during the vehicular pursuit. But without pointing to specific tortious conduct and showing how this conduct caused the suspects’ collision with the decedent, these allegations are wholly insufficient to support a negligence action. Stripped of these allegations, the appellant’s claim is essentially that it was negligence for the officers not to terminate their pursuit prior to the decedent’s death. We reject this claim as being contrary to our law.
Sergent, at S.E. Page 320-21.
- John H. Bryan, West Virginia Attorney
As was discussed at Crime & Federalism, there was a recent US Supreme Court decision – Ashcroft v. Iqbal – which drastically changes a component of most civil rights actions – “supervisory liability.” Generally, when police officers/departments are sued for civil rights violations under federal law (42 USC 1983), it is generally alleged that the supervisors are liable for the actions of the subordinate officers. It used to be that this could be proven without actually having to prove that there was, for instance, a memo issued by the supervisor to engage in a civil rights violation. It could be proven by showing any type of ratification or acquiescence.
In in City of Canton v. Harris, the Supreme Court held that supervisory liablity may attach where “policymakers were aware of, and acquiesced in, apattern of constitutional violations.” But in Aschcroft v. Iqbal, the Court ignored Canton and held that:
[Plaintiff] argues that, under a theoryof “supervisory liability,” petitioners can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of “supervisory liability” is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeed sof their agents. In a §1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term “supervisory liability” is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.
So now you have a situation where the Court says that supervisors will be accountable for their own conduct, but where they are not actually liable for their own conduct. Yes, if they taser a 90 year old grandmother who is handcuffed in the back of a patrol car, they will be liable for that. But if through inadequate supervision (hence the term “supervisor”) they allow their subordinates to do so without stopping them or otherwise “supervising” them, they are not accountable.
Regardless, this probably will not make much difference here in West Virginia since if you ask most defense attorneys in West Virginia, they can’t recall one case of a plaintiff ever even actually recovering on grounds of “supervisory liability” in a federal police liability action. It’s just too much of an ancillary issue and too difficult to prove in most cases.
- John H. Bryan, West Virginia Attorney.
Probably the most vulnerable among us are those who are incarcerated. I’m all for law and order, as well as punishment, but very few of those incarcerated actually killed somebody or are otherwise going to spend the rest of their lives there. Many of them haven’t even been convicted of anything yet, they just don’t have the ability to bond out prior to their trial. Many times these people are physically abused by correctional officers who have the ability to run roughshod over the population. And people don’t care because they view them as criminals.
For instance, there was a North Carolina case that just popped up in the news, which captured the beating of an inmate on video – leading to a civil lawsuit. But if it were not videotaped, nobody would believe it.
In West Virginia, we have some of the worst jails in the country. I’m not talking about the prisons, but the jails – places where people go who are awaiting trial, or who were sentenced to a short sentence of incarceration. It seems like every other day there is a correctional officer being fired for sexually assaulting inmates, or dealing drugs with inmates. And these are just the one’s who get caught. I’ve heard countless stories from different clients of the abuse perpetrated by guards. And most of them are almost identical, despite the fact that these people had never met each other.
Don’t be surprised if the Department of Justice announces an investigation….
- John H. Bryan, West Virginia Attorney.
There was in interesting three part series in the Charleston Gazette’s “Watchdog blog,” “Sustained Outrage” by Andrew Clevenger, focusing on a civil lawsuit against the West Virginia State Police on behalf of Charleston attorney Roger Wolfe – a case I posted on awhile back.
Part 1 deals with a FOIA issue that popped up in that case. Law enforcement agencies (or rather their defense counsel) do not want to hand over the contents of internal investigations of law enforcement officers, citing concerns over sustaining the integrity of the internal investigation process.
Wolfe’s attorneys made a discovery request for those documents, and the WVSP objected claiming that under a Freedom of Information Act Request (FOIA), those documents would be exempt from disclosure. However, Cleavinger quickly points out that:
A state Supreme Court ruling in a 2000 case, Maclay v. Jones, SPECIFICALLY addresses theVERY ISSUE of police records and civil litigation. Here’s what the syllabus point says:
The provisions of this state’s Freedom of Information Act, West Virginia Code §§ 29B–1 to -7 (1998), which address confidentiality as to the public generally, were not intended to shield law enforcement investigatory materials from a legitimate discovery request when such information is otherwise subject to discovery in the course of civil proceedings.
But Andrew, that’s a STATE case. The rules are different in FEDERAL court, right?
U.S. District Judge Charles H. Haden II, in a 2003 ruling in the case Floren v. Whittington, reached the same conclusion. He even cited the Supreme Court’s Maclay opinion.
Cleavinger then hammers the last nail in the coffin, pointing out that:
Virginia Lanham should remember this ruling, as she was one of the two attorneys fromShuman, McCuskey & Slicer who represented some of the defendants in the Floren case. (So should Michael Mullins, who represents Trooper Green in the Wolfe suit; he defended former Dunbar Police Chief Earl Whittington in Floren.)
This case is pending in federal court. The presiding judge issued a ruling in an eleven page opinion - by the way this is another helpful opinion for any plaintiff’s attorneys litigating this issue – calling the WVSP’s objection to the discovery request “unpersuasive” and “unconvincing” and even ordered the WVSP to pay Wolfe attorney’s fees for their improper objection and refusal to produce the personnel filed, etc.
Let’s see if the defense counsel try to use these objections in state court….
- John H. Bryan, West Virginia Attorney.
I am presenting the plaintiff’s portion of a continuing legal education seminar entitled “Handling the Police Liability Claim” in Charleston, West Virginia on March 27, 2009 at The Summit. I am presenting an overview of state law involving civil actions against police departments and officers, as well as an overview of common liability issues. Among the items discussed will be forms of immunity, criminal procedure rules, state case law, and state law causes of action. I probably will also discuss the significance and procedure of the Department of Justice’s pattern or practice investigations of police misconduct.
There also will be two seasoned defense attorneys there discussing an overview of federal law, an overview of the police internal investigation and disciplinary process, the filing of a state civil action, and the defending of a police liability claim. I am really looking forward to hearing their viewpoint and strategies for defending these cases.
You can register or find out more information on this CLE by calling 1-800-930-6182, or by visiting NBI’s website.
– John H. Bryan, West Virginia Attorney
Here is a copy of a police liability/ governmental liability lawsuit that I filed last week against various agencies of the State of West Virginia, Pocahontas County, and several private corporations and individuals – including Snowshoe Mountain – on behalf of Brent Carter Flanary. Since the case is obviously pending, I can’t comment on the facts other than to summarize what is in the pleadings, which are lengthy. This case is about a man who had everything and ended up with nothing.
The Complaint alleges that Mr. Flanary, who had a condo at Snowshoe and was going through a bitter divorce, was forced “off the mountain” by Snowshoe officials, with the help of local and state law enforcement – all of whom were communicating with Mr. Flanary’s ex-spouse. During this process, Mr. Flanary suffered imprisonment, both in a jail and in a mental hospital, for over a month’s time, was beaten, sexually assaulted, attacked with gas grenades, tasers, German Shepherds, and fists – all over allegedly being publicly intoxicated, for which incarceration isn’t even a potential punishment (1st offense). None of the aforesaid “use of force” incidents were in any way memorialized in a police report or “use of force” affidavit. Instead, they were covered-up until after the expiration of the one year statute of limitations for false arrest and false imprisonment. Additionally, much of the conduct underlying these allegations were videotaped. One of the video tapes emerged nearly two years later, conveniently missing the relevant footage at the end of the digital footage (and also after the lapsing of the aforesaid statute of limitations). Another video tape has yet to emerge. But this didn’t stop the prosecutor – and now disbarred assistant prosecutor – from attempting to bring Mr. Flanary to trial on the criminal charges (without production – or even admission of the existence of – the video tapes).
You may not want to take all the time necessary to read the entire document. However, this Complaint may be useful to other West Virginia attorneys who are facing – or considering – police liability or governmental liability cases. The area of law is extremely complex and tricky, and there’s not a whole lot out there to review prior to filing your own case. A considerable amount of research went in to the drafting of this Complaint, including the review of just about every police liability case filed in West Virginia in the last five years. – John H. Bryan, West Virginia Attorney
UPDATE: State Journal story on the Flanary case posted 1/8/09.
Pocahontas Times story also posted 1/8/09.
[Note: at the polite request of innocent family members, I replaced the name of the least culpable defendant with ****.]
Surprisingly, it appears that I am the first to break this story – that the “Cattlegate Cons” were sentenced this morning by U.S. District Court Judge Thomas E. Johnston as follows:
O’Brien was sentenced to 97 months of active incarceration and 3.4 million dollars in restitution.
Henthorn was sentenced to 9 months of incarceration and a $75,000 fine.
***** was sentence to 5 months of incarceration and a $50,000 fine.
ANOTHER UPDATE: The Register-Herald has now published a lengthy article on the sentencing yesterday. Reporter Christian Giggenbach noted in the article that Judge Johnston made some interesting observations about the case during the sentencing hearing.
Johnston also railed on Henthorn, 46, of Lewisburg, for abusing his position of trust in the banking community. He also insinuated this was probably not the only illegal act Henthorn had committed.
“You were living a privileged life and you threw that away,” Johnston said. “This is an example of what can happen when you allow greed to overcome you.”
Henthorn also apparently attempted to get his probation officer to remove negative letters that were going to the judge.
Former FNB board member James C. Justice II of Beckley was among family and church members who wrote letters in support of Henthorn. One document filed by a court official indicated the defendant called his probation officer on June 4 and asked her if “she would remove the negative” letters from his support file.
“The probation officer responded she would not do so … Mr. Henthorn was obviously upset by this answer and ended the conversation soon thereafter,” wrote U.S probation officer Peggy Adams.
Can you believe the arrogance of this guy? Judge Johnston also questioned why First National Bank of Ronceverte was suspiciously absent from this entire ordeal – despite the fact that their President and Board members caused this whole mess. According to the article:
Johnston also asked a rhetorical question about Henthorn’s former employers.
“I’m puzzled by the fact that First National Bank has not participated at all in this hearing,” the judge said. “I expect the whole story has yet to be told.”
However, there was a former board member and one former president of First National Bank there supporting Henthorn and *****, respectively (see Justice above). According to the article:
****** had about 15 friends and family members present for the hearing, including former state Commerce Secretary and ex-FNB president Tom Bulla, who Johnston vocally noted had come to support ******. Johnston said individuals filed more than 100 letters of support for ******, “the most I’ve ever seen in a case.”
So, “FNB” was not completely absent, they were represented by former officials – who were there to ask the judge to be lenient. I would note that one of those former officials himself resigned from the board only shortly before ***** and Henthorn themselves resigned from “FNB,” which was reported publicly, but not explained. Don’t you just love banks? Their only motivation is money, and even when their hands are publicly caught in the cookie-jar, they can just switch presidents and board members, and continue on foreclosing on people’s homes who do not have connections to the Board, and making sweetheart loans to crooks like O’Brien, who do have connections to the Board. For too long citizens have been abused by bank boards using their positions to help their buddies and harm innocent folks. A bank would slit your throat if they thought they could make a buck. And lawyers get a bad name….
To *****, Judge Johnston had this to say:
“You participated in a sorry effort to cover this up … which almost resulted in an obstruction charge,” Johnston said.
“Is this the way business is done in Greenbrier County? By being present when a bribe is slid across the table to a bank president?
Johnston then asked why ***** would have risked so much by setting up the bribes, but then not receive any money in return. Johnston also suggested this was not ***** first brush with illegal activity. Forbes told the court ***** turned down bribe money when approached by O’Brien.
“Why would a man of your experience get involved with this?” Johnston asked.
Lastly, the Register-Herald article noted that the case is still being investigated, and that the defendants will most likely enter prison within the next 30 to 45 days. It will be interesting to see whether Judge Johnston is right that “the whole story has yet to be told….”
Note: There also is a new Charleston Gazette article this morning.
- John H. Bryan, West Virginia Attorney.
The Register-Herald published a rather lengthy and informative article about Greenbrier County’s “Cattlegate” scandal this morning. I have posted on this matter several times thus far, here, here, here, here and here, and I have noticed a lot of interest in this case from the sheer amount of search engine traffic directed to my site from searches about these individuals. I suppose that some people were relying on me to post an update to this matter since the sentencing was supposed to already have happened. But I really didn’t have any idea what was going on. But, I knew that Register-Herald reporter Christain Giggenbach was on top of it, so I need only wait until he published an article, which I knew he surely would – and this morning he did.
Apparently the sentencing was supposed to have taken place this morning, but it was continued, though there were no motions filed by either the prosecution or the defense. Well why was it continued? Apparently these angelic creatures have turned stool pigeons and are collaborating with authorities in investigating other individuals. But since all these canaries are proven liars, I’m not sure what their help is worth, and investigators better not give their words more than a micro-ounce of a grain of salt. The history books are full of tragedies which have occurred through the utilization of this type of snake-in-the-grass testimony. For example, see this post from Glen Graham at the Oklahoma Criminal Defense Blog.
The sentencings were continued to October 17 at 10:30 a.m. before U.S. District Court Judge Thomas E. Johnston in Beckley’s Federal Courthouse.
So what kind of sentences are they looking at? A lot of people have commented to me that this bunch is going to get away with probation, but that will not happen. They may however, get some type of home confinement, or mixed sentence. With respect to O’Brien, a presentencing memorandum filed by Assistant U.S. Attorney L. Anna Forbes recommended a prison sentence up to 10 years, but “indicated the defendant has provided more information about possible criminal conduct of others who may have filed claims in his multi-million dollar bankruptcy case.” Lastly, she writes to the Court that “a sentence within the advisory guildine range of 97 to 121 months of imprisonment is appropriate.” So fear not, even with his sleazy finger-pointing, he will be doing time.
With respect to Henthorn and *****, the AUSA recommended 6 to 12 months, while their lawyers are arguing for home confinement or a mixed-type of sentence – and they are apparently strenuously snitching as much as the feds will allow, in order to get what they want. Mind you, that all of these defendants already snitched on each other – one even reportedly wearing a wire in a conversation with the others.
I know that there are a lot of people out there, in Greenbrier County, Monroe County – and across the fruited plain – who want the Judge to stick it to them. The AUSA noted in her memorandum that:
“One of the victims is a single-mom with a couple children in college, another is a Virginia cattle farmer with a small farm who lost so much money and was so ashamed by his financial predicament that he could not, for a long time, bring himself to tell his wife about what the defendant had done,” Forbes wrote. “Many of the victims attempted to pursue claims in bankruptcy, a process that left some with unsatisfactory settlements, large legal fees and a sense, because of the perceived misconduct by other creditors, that they had not been treated fairly by the bankruptcy system.”
So this is a great group of guys. Real quality people, and I wish them luck on the 17th.
- John H. Bryan, West Virginia Attorney.
As reported in the Charleston Gazette today, Charleston lawyer, Roger Wolfe, who is a “senior labor and employment lawyer” with Jackson Kelly, was arrested on suspicion of DUI on June 17, 2007. Apparently he was taken to the South Charleston state police “barracks” (again, why do cops like to pretend that they are some type of pseudo-military), and when he smiled at a female trooper, she told him that she would wipe that smile off his face, and had a male cohort take him into an adjoining room. He was beaten so fiercely that he leaked cranial fluid out of his nose.
Then, as if to add insult to injury, the emergency room doctor allowed a trooper to come in and question him while he was in-and-out of consciousness, in order to cover their tracks. For instance, he was supposedly asked, “when you were speaking with the female trooper, do you remember trying to kiss her?” and “how did you get that knot on your head.” If all he had was a knot on his head, then why was he in the emergency room? And why did he spend a week in the hospital with “potentially life-threatening injuries?” What if he did try to kiss her? Is that worth the man’s cranial fluid on the floor? I would hope that other female law enforcement officers are embarrassed and ashamed of this…
Good luck to Mr. Wolfe. The sad thing is that had this guy not been a lawyer with a powerful firm, probably nobody would believe him. This matter better be under investigation by the state, and by the feds. These crooked cops deserve to be stripped of their badges and locked up with their prior arrestees.
You can read the full article here.
– John H. Bryan, West Virginia Attorney.
From the Register-Herald today:
Matthew Peelish, a Raleigh County contractor, pled guilty to 3 counts of felony obtaining goods by false pretenses for taking money from people and not completing the work, and for obtaining materials from local merchants on an account and refusing to subsequently pay. The Court held him to task and sentenced him from 2 to 20 years.
This is extremely common here in Monroe and Greenbrier county, yet no one is ever prosecuted for it. Everyday people are prosecuted for some ridiculous things, and in these situations, you have real victims that lost real money. Yet 9 times out of 10, they have to resort to a civil action, which leaves them trying to collect a judgment years into the future, or worse, from a trustee in bankruptcy. The problem often cited by prosecutors is that it is difficult to show the requisite intent (intent not to pay at the time the goods are taken or money accepted) to prove the charges. But then again, since when do judges or juries hold prosecutors to their burden of proof anyways?
It really hurts a local business when a deadbeat contractor runs up an account of 5, 6 or 7 thousand dollars and then skips out on the bill. It should be prosecuted. Bravo to the Raleigh County Prosecuting Attorney.
You can read the full article here.
– John H. Bryan, West Virginia Attorney.
I have been asked many times recently what has happened with this case. Well, nothing has really happened since the sentencing has not yet taken place. The sentencing for these crooks will take place on June 30, 2008 before U.S. District Judge Thomas E. Johnston. There are also several civil cases currently pending in this matter, which undoubtedly will be detailed in the future.
You can read my previous post here.
– John H. Bryan, West Virginia Attorney.
This is a story that I will detail in a later post if need be, but it rises to the situation where the public should be informed of this massive abuse of authority.
A southern West Virginia Chief of Police, who is a big guy and also a military veteran, had his little wife arrested by a buddy law enforcement officer for “domestic assault,” taken into physical custody, after which she was able to bond out with a $5,000 cash bond. For those of you who don’t know, $5,000 is the average bond for felonies in southern West Virginia.
This police chief then filed for divorce and refused to drop the frivolous criminal charge against her unless she agreed to his terms for the divorce. This story is continuing and may be updated based on future actions taken by the law enforcement officer.
– John H. Bryan, West Virginia Attorney.
From the Register-Herald this morning:
A wrongful death lawsuit filed late Monday afternoon claims members of the Raleigh County Sheriff’s Department acted negligently when they shot and killed a Cabell Heights man who was firing a high-powered weapon in the early morning hours of July 4, 2006.
Filed by Charleston attorneys Michael A. Olivio and Travis A. Griffith on behalf of Mary Webb, the widow of Robert Webb, the suit lists defendants as the Raleigh County Sheriff’s Department, the Raleigh County Commission, Sheriff Danny Moore, then-Chief Deputy Steve Tanner, Deputy Greg S. Kade and Deputy John E. Hajash.
According to Register-Herald files and the complaint, Kade and Hajash were responding to a complaint that Robert A. Webb, 44, was playing loud music and shooting an AK-47 assault rifle outside his Cabell Heights home.
According to the lawsuit, Webb was discharging his firearm in celebration of his birthday and the Fourth of July holiday, but more than 30 minutes had elapsed between the firing of the weapon and the arrival of Kade and Hajash at the Webb residence.
The suit also claims “numerous residents within the neighborhood” were also firing weapons in celebration of the holiday and that Webb never fired his gun to threaten or endanger anyone.
The complaint claims Kade and Hajash parked away from the residence, out of sight, and approached on foot “while using cover to conceal their presence.” It also claims Kade took an assault shotgun from their patrol vehicle instead of his service standard handgun in spite of the fact the call was considered a “non-emergency nuisance call.”
When the deputies arrived on the scene at approximately 1 a.m., Webb was not shooting; still Kade and Hajash remained concealed by a row of trees until they witnessed Webb turn away from them, “at which time they ran toward Robert Webb in order to close the distance between them,” according to the complaint.
“Deputies Kade and Hajash proceeded up the street toward Mr. Webb and shot Mr. Webb while he was standing in the driveway of his home,” the complaint reads. “Deputies Kade and Hajash failed to identify themselves as law enforcement officers prior to firing their fatal shots at Mr. Webb.”
Webb was hit in the head and knocked to the ground by an initial shot from a shotgun, according to the complaint. While he was on the ground, one of the deputies shot him again with a handgun.
The complaint also claims emergency medical personnel were denied immediate access to Webb by members of the Raleigh County Sheriff’s Department, who finished taking photographs before they allowed medical personnel to touch Webb.
Obviously there are two sides to every story, but if the allegations that are included in the complaint are true, then there were some real problems with the conduct of the law enforcement officers in this situation. Having formerly investigated pattern or practice police misconduct for the Department of Justice, the way these officers approached the scene jumps out at me as either gross negligence or reckless disregard for human life and proper police practices. First of all, shooting firearms into the air on the 4th of July is not an offense punishable by death. They should have approached in their cruisers with their emergency lights on. There was no allegation (apparently) that the victim was firing his weapon towards anyone else. It was obviously a 4th of July celebration. Secondly, the man was in his driveway, it was dark, and they sneaked up on him with a shotgun pointed at his face. It would have been understandable if the victim had shot at the officers. However, he did not – there apparently was no evidence that he attempted to shoot at them. It is uncontested that the victim never fired a shot. Having your head blown-off by a short-barrel shotgun is a pretty harsh way to die, and understandably, the family is looking to make the county pay.
Read the full article here.
– John H. Bryan, West Virginia Attorney.
From the Charleston Gazette today:
Charges are expected to be filed against 19-year-old Andrew S. Hardin, of St. Albans, who allegedly shot and killed Nicholas Lee Caldwell while hunting turkey on Tuesday, state Division of Natural Resources investigators said.
Caldwell, 16, was in a wooded area off Kanawha Street near St. Albans when he was hit by shotgun pellets at about 8:30 a.m., said Hoy Murphy, spokesman for the DNR, which is investigating the incident.
People near the scene told investigators they saw 19-year-old Andrew S. Hardin, of St. Albans, hunting in the area. In an interview with officers, he later confessed he was the shooter, DNR officials said.
As in many other cases, usually the cover-up is more serious than the original crime. What if the victim was alive after the shooting and the shooter left him to die? In that case, he should face murder charges. The autopsy, which will almost positively take place, should indicate whether or not it was an immediate death.
The victim was hunting on private land near his home and he had permission to be hunting there. The shooter however, at least according to the article, appears not to have had permission to be hunting on this land. This is absolutely disgusting to me. As an avid turkey hunter, I have hunted around many other people, and almost every single one of them takes the proper safety precautions. Anyone who can’t tell the difference between a turkey and a hunter ought not to be in the woods in the first place. Furthermore, since this person was likely trespassing, he ought to go to prison for this.
You can read the entire article here.
– John H. Bryan, West Virginia Attorney.
From the Register-Herald:
Another lawsuit filed against bank, officials in alleged cattle fraud case
By Christian Giggenbach
LEWISBURG — Another lawsuit has been filed against First National Bank of Ronceverte and two former bank officials, this time by an Illinois man who alleges disgraced cattle broker Kevin Scott O’Brien defrauded him out of $104,000.
The lawsuit, filed by Robert Dwyer, named First National Bank, former bank president Charles A. Henthorn and former board director **** as defendants.
Henthorn and **** recently pleaded guilty in federal court, Henthorn for taking $10,000 in bribes from O’Brien, and **** for setting up bribes.
O’Brien pleaded guilty to a mail fraud charge involving the sale of cattle in fraudulent Ponzi schemes. A sentencing date has not been set for any of the defendants.
Dwyer claims he gave O’Brien $104,000 in February 2006 for “80 pairs of heifers and their calves,” which should have been shipped to Dwyer’s farm in Carthage, Ill.
“Instead of arranging for the cattle to be trucked to Dwyer … O’Brien sold the cattle to ****,” the lawsuit said. “O’Brien’s sale of the Dwyer cattle to **** was simply one of the last acts of fraud and deceit in O’Brien’s continuing scheme.”
Dwyer claims the bank knew about the **** deal, but looked the other way because O’Brien owed the bank money.
“The bank, through its senior management, including Henthorn and ****, devised a scheme with O’Brien pursuant to which O’Brien would sell **** cattle,” the lawsuit said. “The money that **** paid for the cattle was to be deposited into O’Brien’s checking account in satisfaction of debts that O’Brien owed the bank.”
Dwyer is seeking punitive damages on the basis of fraud, civil conspiracy, and aiding and abetting a wrongful act, among other charges.
Dwyer is being represented by Charleston lawyer James W. Lane.
Neither **** nor Henthorn could be reached for comment.
In February, another Illinois man, Frederic W. Nessler, filed a $340,000 lawsuit against the same three defendants alleging fraud.
O’Brien, who is currently mired in a multimillion-dollar bankruptcy, wasn’t named as a defendant in either suit.
— E-mail: email@example.com
From the Register-Herald:
Man charged with conning 82-year-old
What a piece of trash this guy is. He gives a bad name to door-to-door vacuum salesmen everywhere. Shouldn’t there be some liability on the part of the car dealership? They were so eager to make a sale that they ignored an obvious problem. I would be interested to see an interrogation of this car salesman who allowed this to happen. There may not be any criminal liability, but there must be civil liability for negligence at the very least. – John H. Bryan, West Virginia Criminal Defense Attorney.
Deputies say $70,000 SUV purchased in scam
By Amelia A. Pridemore
Raleigh County sheriff’s deputies say a Daniels man conned an 82-year-old woman into buying him a $70,000 SUV.
Steven Mitchell Cox, 30, of Daniels, is charged with obtaining property by false pretenses, according to Deputy J.L. Redden. Cox was taken into custody Thursday and released on $50,000 bond set by Magistrate Charles Humphrey.
Cox took the woman from Daniels to Beckley Auto Mall on Feb. 15, Redden said, and convinced her to sign for a 2008 GMC Yukon. Cox had told her she would simply be co-signing for the vehicle to help him establish credit, Redden said.
Cox also told staff at Beckley Auto Mall the woman was his grandmother and she wanted to buy him a vehicle, Redden said. Neither statement was true. Cox is not related to the woman, who signed and financed the Yukon.
It left the woman more than $70,000 in debt, Redden said.
Cox took the vehicle and all the paperwork, then kept it, Redden said. The woman discovered she had actually purchased the vehicle when she received registration forms from the state Division of Motor Vehicles.
The woman and Cox met through a business transaction when Cox was going door-to-door selling vacuum cleaners, Redden said. Cox also started a home improvement project for the woman that he never finished.
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